THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Chief Judge Crawford delivered the opinion
of the Court.

Contrary to his pleas appellant was convicted
by military judge alone of assault with means likely to produce grievous
bodily harm. The convening authority approved the sentence of a bad conduct
discharge, nine months’ confinement, total forfeitures and reduction to
the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings
and sentence. 52 MJ 550 (1999). We granted review of the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY REFUSING TO ADMIT CONSTITUTIONALLY REQUIRED DEFENSE EXPERT EVIDENCE
FROM A FORENSIC PSYCHIATRIST ABOUT AN ALTERNATIVE PERPETRATOR THAT WAS
AN INDISPENSIBLE ELEMENT OF APPELLANT'S DEFENSE, EVIDENCE WHICH SHOULD
MOST CERTAINLY HAVE BEEN ADMITTED UNDER EXISTING MILITARY LAW AND WHICH
WOULD HAVE MOST CERTAINLY BEEN ADMITTED IN MANY OTHER FEDERAL AND STATE
COURTS.

FACTS

Appellant’s wife brought their newborn (4 week
old) son, Jarod, to the emergency room of United Hospital in the civilian
community at about 7:30 a.m. on the morning of February 3, 1997. Jarod
was seen by Dr. Richard Wacksman, a critical care physician, who testified
that he observed severe trauma to the child including bruises to the nose
and extensive retinal hemorrhages (R. 219-223). Jarod’s skull contained
a subdural hematoma and his brain continued to swell after admission (R.
224, 231). Dr. Wacksman testified that there was no medical cause for the
injuries and that they were consistent with "non-accidental injury." (R.
239).

LtCol. (Dr) Gael Lonergan, a pediatric radiologist,
testified that an examination of the computerized topography scans of Jarod’s
brain showed a large amount of blood in the brain, a level normally only
seen in serious automobile accidents (R. 452). Dr. Lonergan testified that
the child’s injuries were so serious that the brain had atrophied. Based
on her review of the record of the CAT scans she concluded that Jarod had
been violently shaken (R. 454).

Appellant’s wife, Nicole, testified that the
night of 2-3 February, 1997 she had some friends in for a party. This was
the first time she or her husband had entertained friends following the
birth of Jarod on 6 January 1997. This party continued most of the night.
Nicole testified that at about 10:00 p.m. she had put Jarod to bed and
fed him a bottle (R. 156). The child was sleeping in the same bed that
she and her husband used (R. 154-155). She also testified that sometime
between 12:30 a.m. and 2:30 a.m. she heard Jarod crying. She went upstairs,
changed his diaper and fed him a bottle (R. 163). Jarod did not take his
bottle well. Mrs. Dimberio then "propped"1
the bottle and left the child so she could return to her company (R. 164).
This took no more than 15 minutes (R. 165)

Appellant did not testify on the merits. Therefore
the chronology of his movements is established through the testimony of
other witnesses. That evidence established that appellant went to bed sometime
between 12:30 a.m. and 4:30 a.m., but clearly after his wife had fed the
child a second time (R. 111, 165 349, 392). He was tired from being in
the field and had consumed no alcohol during the evening (R. 157, 346 359).

No one heard anything further from the child
until sometime between 5:30 and 6:30 a.m. All of the witnesses testified
Jarod began to cry loudly about that time. (R. 111, 523). In fact the crying
was so strong that it caused Mrs. Dimberio to begin to lactate although
she had stopped nursing the child several days before (R. 173).2
One of the guests testified that the crying was originally like "a newborn’s
cry" but that it quickly became a hysterical cry (R. 395).

Nicole went upstairs and found dried blood
and abrasions on the child’s face (R. 115). Appellant told her that he
had rolled over on the child (R. 117). No one in attendance at the party
could recall seeing the injuries prior to that time (R. 320, 323, 361,
384). One of the guests testified that when Nicole brought the child downstairs
she observed blood on the child’s nose and on the collar of his shirt (R.
354, 358, see also R. at 400).

Mrs. Dimberio testified that she quickly brought
the child downstairs. She called the base hospital but received no response.
She then called the civilian hospital (United) and spoke with a Dr. Bock
(R. 175-177). While Dr. Bock indicated there was no cause for alarm, Mrs.
Dimberio thought she should take the child to the hospital. Appellant told
his wife that she was overreacting (R. 177). Nicole insisted and a friend,
AMN Beck, drove her and the child to the hospital (R. 178). Appellant did
not accompany them, saying that he needed to attend to the family dog,
who had been outside in the subzero temperature and could not be found
before the trip was made to the hospital. R. 191. But he did go to the
hospital later (R. 115, 521).

Mr. Ramberg, Chief Investigator for the Grand
Forks County Sheriff’s Department, testified that he arrived at United
Hospital about 10:15 a.m. At about 11:30 a.m. he interviewed Nicole Dimberio,
and he then interviewed appellant (R. 102, 109-110). He did not warn appellant
of his rights as appellant was not a suspect at that time (R. 110). During
this interview, appellant merely related that he went to bed about 12:30
a.m. because he was tired and not feeling well (R. 111). He woke up about
6:00 a.m. when his baby began to cry (R. 111). Appellant told Mr. Ramberg
that he picked the child up and tried to feed it. However, the child would
not take a bottle and continued to cry. At that point Nicole came into
the room and turned on the light. This was the first time that appellant
saw any blood on the child. He told Mr. Ramberg that he may have rolled
over on the child during the night (R. 112).

Two days later, appellant was again interviewed
at a different hospital in Fargo, North Dakota, by Investigator Ramberg.
Also present at this interview was OSI Agent Gallegos. Appellant was read
and waived his Article 31 UCMJ rights. At this interview appellant said
he was awakened when the baby started crying. He remembered putting his
forearm against the child to keep him (appellant) upright while he checked
the baby. According to appellant this pressure on the baby lasted for about
5 seconds. (R. 114.) Prior to this second interview on February 5, appellant
had been told that "rolling over on the child would not cause brain damage."
(R. 115.) Although appellant continued to maintain he could have rolled
over on the baby during the night, he now admitted to putting a forearm
on the back of Jarod’s head and applying pressure (R. 118). At no point
during either interview with Investigator Ramberg did appellant indicate
that he thought his wife may have been the cause of Jarod’s injuries (R.
117).

At some point prior to trial, appellant’s defense
counsel learned that Nicole Dimberio had a history of treatment for various
mental health issues. Defense counsel requested, and the military judge
granted, the appointment of an expert to assist the defense in reviewing
Mrs. Dimberio’s medical records. This expert, Dr. Sharbo, concluded that
Mrs. Dimberio suffered from an unspecified personality disorder with narcissistic,
histrionic, and borderline traits. (App. Ex. XXXV at 9.) He also found
that Nicole suffered from stress and on occasion would act without thinking.
Importantly, he did not find, nor did the defense contend, that Nicole
was likely to act out violently or had a history of such actions.

At trial on October 21, 1997, defense counsel
made a proffer that experts in the field of psychiatry would testify that
an individual who has "anger control and stress control issues" might shake
a baby. R. 48. "[S]haken baby syndrome ... is due to a momentary loss of
control due to stress [on] the care giver." Id. "The stress related
factors can be anything, either involving the child itself or external
stress related factors that are going on in the care giver’s life at that
particular time." Id. The defense requested that

Dr. Wacksman and other experts in the field
... testify about that shaken baby syndrome and their experience of the
cause as it is the result of stress and typically is not a premeditated
event. I think that is relevant to go to the state of mind of the accused
and the issue on the specific intent to grievously injure his son. Id.After some questioning, the military judge ascertained
that the linkage between the above proffered testimony and the accused
was that defense counsel intended to introduce character evidence that
appellant was a peaceful individual and calm in stressful situations. R.
49. See also R. 461, 47l, 478-79. According to the defense theory, testimony
that shaken baby syndrome was generally not a premeditated act, coupled
with appellant’s character evidence, would negate the specific intent requirement
of the charged aggravated assault. After additional discussion, defense
counsel revealed that another purpose behind its desire for expert testimony
was to admit the psychological history of Nicole Dimberio under Mil.R.Evid.
404(b). R. 52. In support of this position, counsel introduced the legislative
history behind Fed.R.Evid. 413-15, and an article on the subject. App.
XXXII.

At a conference more than a day later, defense
counsel offered Appellate Exhibit XXXV which was styled as a supplemental
funding request for forensic psychiatrist David A. Sharbo and a request
to appoint Dr. Sharbo as an expert witness. A part of this appellate exhibit
was a two-page memorandum written by Dr. Sharbo as a result of his examination
of Nicole Dimberio. He found:

5. She has a history of instability in nurturingrelationships throughout her formative years.
Thisis a contributing factor to difficulty maintaininghealthy relationships in adult life.

6. Shifting back and forth between homes to
meet herown desires while in school fostered subsequentimpulsivity and difficulty in relationships.

7. Her previous history of poor impulse control
andself destructive behavior includes eating
disorder,alcoholism and suicide attempt by poisoning.

8. We have only her word for the amount she
drank thatnight (2 beers.) Denial/minimization is characteristicof individuals with addictive disorders in
general andalcoholism in particular.

9. This is an individual that would not be
expected tohandle stressful situations well.

App. Ex. XXXV.

This proffer and request by defense counsel
for the admission of Dr. Sharbo’s testimony in accordance with his two-page
diagnosis, was actively opposed by the trial counsel. The military judge
said he was not adverse to allowing expert testimony, but:

There is no evidence, zero evidence, that
she (meaning Nicole Dimberio) has acted out violently toward any baby.
There is no evidence that she has acted out violently against her own baby.
There is zero evidence that when she gets in a stressful situation that
she acts out violently and it would be necessary in the court’s opinion
for you to have that connection and have that opinion in order to solicit
this information.... I, quite frankly, see Nicole Dimberio, based on simply
what I have heard in a courtroom, as certainly someone who meets a number
of these characteristics; that she doesn’t handle stressful situations
well is pretty evident from listening to the testimony in terms of her
reaction. But, what you are missing, in the court’s opinion, is the connection
between stressful situations and violence or the impulsivity and violence.R. 500.

The military judge also found that the mere
fact that Nicole may have yelled at someone under a stressful situation
should be excluded under Mil.R.Evid. 403. Id. The judge also stated
he would not allow an extrapolation of Nicole’s different behavioral characteristics
into testimony before the panel. R. 501.

Defense counsel responded that because shaken
baby syndrome was not normally a premeditated act, the defense did not
have to "show the link between stress and acting out and violence." R.
501. According to defense counsel, he merely had to show a link between
the state of mind of Mrs. Dimberio through her impulsive personality traits
with the expert testimony that the shaken baby syndrome negates a premeditated
act. R. 502. In response the judge noted that if there had been evidence
of violent acting out with children in the past, he would have entertained
admitting the evidence pursuant to Mil.R.Evid. 402(b). R. 502-03. There
was no evidence of such in this case.

DISCUSSION

It is undeniable that a defendant has a constitutional
right to present a defense. In Washington v. Texas, 388 U.S. 14
(1967), the Court held that compulsory due process includes both the right
to compel the attendance of defense witnesses and the right to introduce
their testimony into evidence. In United States v. Robinson, 39
MJ 88, 89 (CMA 1994), this Court stated that the Equal Protection Clause,
Due Process Clause, and the Manual for Courts-Martial each provide that
servicemembers are entitled to expert assistance when necessary for an
adequate defense. United States v. Garries, 22 MJ 288, 291 (CMA
1986).

However, the Constitution does not confer upon
an accused the right to present any and all types of evidence at trial,
but only that evidence which is legally and logically relevant. SeeChambers v. Mississippi, 410 U.S. 284 (1973). Appellant seeks the
admission of Dr. Sharbo’s testimony under Mil.R.Evid. 401-405 and 702-703.

Rules 401-404 set forth what is legally and
logically relevant. Rule 401 defines logically relevant evidence as "evidence
... having any tendency and reason to prove or disprove any disputed fact
that is of consequence to the determination of the action." However, even
though the evidence is logically relevant, it may be excluded as not legally
relevant if "its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the members,
or by considerations of undue delay...." Rule 403.

Rules 404 and 405 set forth rules concerning
the introduction of character evidence including what constitutes proper
character evidence and the mode the proof. What constitutes "character
evidence"? "Character is a generalized description of a person’s disposition,
or of the disposition in respect to a general trait, such as, honesty,
temperance or peacefulness." McCormick on Evidence § 195 at 686 (5th
ed. 1999). Rule 404(a) provides in pertinent part "evidence of a person’s
character or a trait of a person’s character is not admissible for the
purpose of proving that he acted in conformity therewith on a particular
occasion, except as otherwise limited."

The Advisory Committee notes:

circumstantial use of character is rejected
but with important exceptions: (1) an accused may introduce pertinent evidence
of good character (often misleadingly described as "putting his character
in issue"), in which event the prosecution may rebut with evidence of bad
character; (2) an accused may introduce pertinent evidence of the character
of the victim, as in support of a claim of self-defense to a charge of
homicide or consent in a case of rape, and the prosecution may introduce
similar evidence in rebuttal of the character evidence, or, in a homicide
case, to rebut a claim that deceased was the first aggressor, however proved;
and (3) the character of a witness may be gone into as bearing on his credibility.
McCormick §§ 155-161. This pattern is incorporated in the rule.
While its basis lies more in history and experience than in logic, an underlying
justification can fairly be found in terms of the relative presence and
absence of prejudice in the various situations. Falknor, Extrinsic Policies
Affecting Admissibility, 10 Rutgers L. Rev. 574, 584 (1956); McCormick
§ 157. In any event, the criminal rule is so deeply imbedded in our
jurisprudence as to assume almost constitutional proportions and to override
doubts of the basic relevancy of the evidence.The Advisory Committee notes, Rule 404.

Thus, this rule provides that circumstantial
use of character evidence is impermissible except for the three exceptions
noted above.3

Mil.R.Evid. 405(a) provides that, whenever
"evidence of character or a trait of character of a person is admissible,
proof may be made ... by testimony in the form of an opinion." While the
commentators are divided whether the opinion testimony like that proffered
by the defense implicates a character trait4.
We will assume character evidence is broader than defined by McCormick
and includes psychiatric diagnosis or personality disorders. Such evidence
would not fit within the exceptions to Mil.R.Evid. 404(a). However, that
does not answer the question because if the evidence is otherwise legally
and logically relevant under Rules 401 through 403 the defendant has a
constitutional right to introduce the evidence. However, in order for the
evidence to be admissible, appellant has the burden of by making an adequate
proffer or presentation of evidence. Mil.R.Evid. 1035.

The "substance of the evidence" that was part
of the proffer has to be made known or be "apparent from the context."
Mil.R.Evid. 103(a)(2). This can be done through a stipulation, through
direct examination, or through a proffer. In any event, any of those methods
must encompass the foundational requirements. See Edward J. Imwinkelried,
Evidentiary
Foundations (2d ed. 1989).

If part of a proffer is admissible and part
inadmissible , the offering party must single out the admissible part,
otherwise the evidence shall be held inadmissible. Collins v. Seaboard
Coast Line, R.R., 675 F.2d 1185, 1194 (11th Cir. 1982);
Dente
v. Riddell, Inc., 664 F.2d 1, 2 n.1 (1st Cir. 1981). Stated
differently, if a party makes a proffer of evidence that is partly admissible
and partly inadmissible without limiting the proffer, the party cannot
complain on appeal if the court, as it did here, excludes the entire offer.
Paddack, et al. v. Christensen, et al., 745 F.2d 1254, 1260 (1984);
United States v. West, 670 F.2d 675, 683 (7th Cir. 1982);
United States v. Stout, 667 F.2d 1347, 1353-54 (11th
Cir. 1982).

Rules such as Mil.R.Evid 403 and 404(a) that
exclude evidence from criminal trials do not abridge an accused’s constitutional
right to present a defense so long as they are not arbitrary or disproportionate
to the purposes they are designed to serve. Evidence may be excluded even
though of probative value if "its disallowance tends to prevent confusion
of issues, unfair surprise and undue prejudice." Michelson v. United
States, 335 U.S. 469, 476 (1948). SeealsoJaffe v.
Redmond, 518 U.S. 1, 9 (1996) ("sufficiently important interest" may
outweigh right to present probative evidence); United States v. Clemons,
16 MJ 44, 50 (CMA 1983)(Everett, J., concurring)("In some situations there
are strong public policies that favor excluding certain types of relevant
evidence.").6 To rise
to the level of constitutional error, a ruling must have infringed upon
a weighty constitutional interest of the accused. SeeUnited
States v. Scheffer, 523 U.S. 303, 308 (1998).

Character may be proved by either reputation
evidence,7 opinion evidence8
or evidence of specific instances of conduct.9
Is the evidence admissible as character evidence under Rule 404(a)? If
not, is it constitutionally required to be admitted? Or should it be admissible
under the 700 rules?

The defense did not offer an appropriate foundation
for the introduction of reputation or opinion type evidence. United
States v. Breeding, 44 MJ 345, 350-51 (1996). SeealsoUnited States v. Toro, 37 MJ 313, 317 (CMA 1993); United States
v. Tomchek, 4 MJ 66 (CMA 1977). Both lay and opinion evidence is admissible
on personality traits. The expert in this case had not known Mrs. Dimberio
long enough to have formed a traditional opinion as to her character or
to have heard about her reputation in the community but could express an
expert opinion as to the patient’s mental condition. Id. Nor did
the defense offer specific instances of conduct by Mrs. Dimberio. Thus,
under Mil.R.Evid. 404-405, the evidence set forth in App. Ex. XXXV was
inadmissible as the court below held, 52 MJ at 558-59.

Nor was there a sufficient proffer under Rules
401-405 and the 700 series. We normally think of these traits as traits
that are relevant to the offense charged, that is honesty in a larceny
case or law-abidingness in any case. However, the defense in this case
seeks to introduce evidence, App. Ex. XXXV, as a mental disorder under
the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)(4th
ed. 1994). This evidence may very well be relevant if the defense establishes
that individuals with certain diagnoses confronted with certain situations
may respond in a similar consistent way. While circumstantial proof of
conduct may very well be relevant, it has more complex inferential problems
that require a sufficient basis in a first instance.

As to Mil.R.Evid. 702-703, Mil.R.Evid. 103,
requires an adequate proffer as to expert testimony that includes the following:

1. Qualifications of the expert

2. The subject matter of the expert testimony

3. Basis for expert testimony

4. Legal relevance of the evidence

5. Reliability of the evidence, and

6. Probative value of the testimony.

SeeUnited States v. Houser, 36
MJ 392, 397. SeealsoUnited States v. Griffin, 50
MJ 278, 283 (1999), United States v. Combs, 39 MJ 288, 290 n.1,
CMA 1994; United States v. Banks, 36 MJ 150, 161 (CMA 1992).10
Assuming the qualifications of the expert, what is missing here is an adequate
proffer that this evidence of Mrs. Dimberio’s mental health problems had
a nexus or link to behavioral traits of acting out and violence.

It is difficult to exempt biophysical facts
from mental disorders. However, in any event the proponent must satisfy
the Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993),
reliability standard. An unreliable test is not sufficiently legally relevant.
The question is whether traits exist and whether they are manifested in
certain situations. Like other scientific theories, the expert would have
to show that these character traits do react similarly in certain situations
satisfying the Daubert rules. Even an individual with certain characteristics
may have internal self-monitoring which may or may not cause them to act
similarly in various situations. Some legal scholars who have engaged in
exhaustive research have even questioned the use of character evidence.
Lawson, Credibility in Character: A Different Look at an Indeterminable
Problem, 50 Notre Dame Law. 758 (1975). Appellant did not proffer evidence
that a person with his wife’spersonality trait would act out in
a violent manner.

The defense did not cite any case or rule that
would have allowed the introduction of expert testimony concerning Mrs.
Dimberio’s condition and her likelihood of being the perpetrator. If, as
the defense contends, that it is so apparent, then no evidence would be
needed on the topic. However, this Court has stressed over the years the
six Houser steps that are a predicate to introducing expert testimony.
The defense did not attempt to meet these steps.

If the defense had satisfied Rules 401-405
and 702-703, the evidence would still be inadmissible under 403’s11
balancing test.12 In
the absence of character evidence that Mrs. Dimberio’s mental health was
tied to violence, including prior violent acts, the introduction of a mental
health diagnosis that she did not handle stress well was both speculative
and potentially confusing to the members. Nor was the proffer "precise
in describing limitations" as to the potential expert testimony. Cf.
United
States v. St. Jean, 45 MJ 435, 444 (1996): "We note that there is an
enormous difference between asserting that persons who bear certain characteristics
are likely to have committed crime [as appellant seeks to argue), and asserting
that persons who manifest particular characteristics are likely to have
a certain mental state or condition (as was at issue in St. Jena]." We
hold that the military judge did not abuse his discretion by excluding
the evidence under Rule 403.

Notwithstanding the exclusion of Dr. Sharbo’s
testimony, appellant did present his defense to the court members through
other means. Through the cross-examination of Mrs. Dimberio, appellant
showed that she had been alone with Jarod for three days while appellant
was out in the field, just prior to the 2nd of February (R.
182). Further, through Dr. Garman’s testimony, appellant was able to show
that Nicole Dimberio was stressed and nervous on the morning of February
3rd and "had the smell of alcohol about her." (R. 485-486).
The only area which appellant’s defense counsel was not allowed to explore
was Nicole Dimberio’s mental health diagnosis and its link to the baby.

In view of the foregoing, the military judge
did not abuse his discretion as the "evidentiary gatekeeper" by excluding
Mrs. Nicole Dimberio’s mental health diagnosis. SeeGeneral Electric
Company v. Joiner, 522 U.S. 136 (1997); United States v. Schlamer,
52 MJ 80 (1999); United States v. Miller, 46 MJ 63 (1997).

Accordingly, the decision of the United States
Air Force Court of Criminal Appeals is affirmed.

FOOTNOTES:

1 Nicole Dimberio
explained that by "propping" the bottle, she meant that she placed the
child in the bed and left the bottle so he could nurse it without assistance.

2
Appellant and his wife had a baby monitor in the room so the child’s crying
was heard by their guests who were downstairs.

3
Mil.R.Evid. 404(a)(2) is "taken from the Federal Rule with minor changes."
Mil.R.Evid. 404(a)(2), Drafters’ Analysis, Manual, supra, at 22-34.
Mil.R.Evid. 404(a)(3) is the same as Fed.R.Evid. 404(a)(3). Id.

5
Taken from Fed.R.Evid. 103 "with a number of changes." Mil.R.Evid. 103,
Drafters’ Analysis, Manual for Courts-Martial, United States, 2000, at
A22-2.

6Cf.
Elkins v. United States, 364 U.S. 206, 234 (1960)(Frankfurter, J.,
dissenting) ("Limitations are properly placed upon the operation of this
general principle [society is entitled to every man’s evidence] only to
the very limited extent that permitting a refusal to testify or excluding
relevant evidence has a public good transcending the normal predominant
principle of utilizing all rational means for ascertaining truth.").

Appellant contends that an erroneous evidentiary
ruling by the military judge violated his constitutional right to present
his defense at this court-martial. The majority holds that defense-proffered
evidence was properly excluded by the military judge under various military
rules
of evidence and that no infringement of appellant’s constitutional right
to present his defense occurred. The dissent asserts that both evidentiary
and constitutional error occurred in this case. I agree with the dissent
that the military judge’s relevance ruling was erroneous, but I conclude
that it did not materially prejudice appellant or amount to constitutional
error.

The Court-Martial

Appellant was found guilty of assault with
a means likely to produce grievous bodily harm on his 4-week-old son, Jarod;
the prosecution’s case, however, was based only on circumstantial evidence.
There were no eyewitnesses to the crime and only appellant and his wife
had significant access to the baby that night.

At issue on this appeal is the correctness
of the judge’s decision excluding certain defense evidence which appellant
argues circumstantially showed an alternate perpetrator of the charged
offense, i.e., his wife, Nicole Dimberio. Appellant had offered
expert testimony from a psychiatrist, Doctor Sharbo, that appellant’s wife
had a personality disorder including traits of impulsivity and the inability
to handle stress well. He asserted that this expert testimony was relevant
in light of Doctor Wacksman’s expert testimony, previously admitted, that
shaken-baby injuries such as baby Jarod’s are usually caused by impulsive
acts of a caregiver under stress. (R. 276-77)

More particularly, defense counsel at trial
offered expert testimony from Doctor Sharbo as to Mrs. Dimberio’s character
disorders of impulsivity and inability to handle stress. 1
He did so for three reasons:

First, to show her character and draw
an inference therefrom and from other evidence in this case that she did
the charged act (R. 498) 2;
second,
to show that appellant did not act intentionally if he did the charged
act 3 (R. 501); third,
to show Mrs. Dimberio’s state of mind, a circumstantial fact identifying
her as the actual perpetrator of the charged offense (R. 502). The military
judge ruled that the evidence was irrelevant because there was no showing
of nexus between Mrs. Dimberio’s character disorders and the acts of violence
charged in this case. (R. 501, 503)

Erroneous Relevancy Ruling

In my view, the military judge clearly erred
when he concluded that the defense-proffered expert testimony was not
relevant to a material issue at appellant’s court-martial. See
Mil. R. Evid. 401 and 402. The third reason for which the defense offered
expert testimony in this case was that appellant’s wife had certain character
disorders (instability and inability to handle stress) and therefore she
was probably stressed out on the night that baby Jarod was assaulted. It
further offered this evidence of Mrs. Dimberio’s mental state on the night
in question to establish a fact identifying her, not appellant, as the
assailant of baby Jarod. Seegenerally 3 Jones on Evidence-Civil
and Criminal § 17:39 (7th ed. 1998) (distinguishing
between identity evidence and evidence offered to show conduct). This was
a viable evidentiary theory and purpose in appellant’s case. See
2 Wigmore, Evidence §§ 411-13 (Chadbourn rev. 1979); seealsoUnited States v. St. Jean, 45 MJ 435, 444 (1996); United States
v. Combs, 39 MJ 288, 291 (CMA 1994).

Moreover, there was evidence linking Mrs. Dimberio’s
character disorders to that particular mental state, and linking that mental
state to a violent assault. Doctor Wacksman, a government witness, testified
on direct examination that the injuries inflicted on Jarod were consistent
with an intentional assault or shaken baby syndrome. He further agreed
on cross-examination by the defense that shaken baby syndrome was an unpremeditated
event related to stress and resulted from "an acute abrupt momentary loss
of control by the caregiver." (R. 277) Clearly, this expert testimony established
the necessary scientific nexus between the proffered defense evidence and
the charged offense, and it went beyond mere speculation. Cf. United
States v. Han, 230 F.3d 560, 563 (2d Cir. 2000); seeState v. Miller, 709 P.2d 350, 353 (Utah 1985); seegenerallyState v. Oliviera, 534 A.2d 867 (RI 1987). In my view, this evidence
was relevant to show the identity of an alternate perpetrator of the charged
offense (one of the classic defenses to any crime). Cf. United
States v. Powers, 59 F.3d 1460, 1471-73 (4th Cir. 1995)
(no "valid scientific connection" established between a particular criminal
offense and evidence that appellant does not fit profile of one who could
commit that offense). 4

Prejudice

Nevertheless, other evidence showing Mrs. Dimberio’s
stressed-out mental state on the night in question was admitted in this
case. It could also serve as a basis to identify her as the perpetrator
of the charged offense and permit appellant to present his alternate-perpetrator
defense to the members. (R. 600, 604-05) In these circumstances, I conclude
that the military judge’s erroneous evidentiary ruling did not materially
prejudice appellant’s rights or amount to constitutional error. SeegenerallyFortini v. Murphy, 257 F.3d 39, 47-48 (1st Cir. 2001)
(erroneous exclusion of defense evidence under circumstances did "not rise
to the level of a Chambers [5]
violation"); Romano v. Gibson, 239 F.3d 1156, 1166-68 (10th
Cir. 2001) (no constitutional error where only incremental evidence of
alternate perpetrator improperly excluded); People ofthe Territory
of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993) (excluded
defense evidence not substantial).

On this point, I again emphasize that defense
counsel argued, inter alia, that the proffered defense-expert evidence
was relevant to show Mrs. Dimberio’s stressed state of mind on the night
of the alleged assault of her baby. He then argued that her stressed state
of mind, among other facts, identified her, not appellant, as the assailant
of baby Jarod. However, Doctor Garman, a witness for the defense, also
testified that Mrs. Dimberio told him the morning after the assault that
she was stressed the night before. (R. 485, 491, 494). Direct evidence
of this state of mind in the form of an admission by Mrs. Dimberio was
certainly stronger than the circumstantial showing of this same state of
mind, based on her character disorders, which was prohibited by the judge.
Moreover, defense counsel was free to argue and did argue that this was
"a crime . . . . of stress" and Mrs. Dimberio was a stressed out person
on the night in question. (R. 604-05)

In reaching the above conclusions I have relied
heavily on my reading of the record of trial and my understanding of the
positions of the parties at this court-martial. In my view, the prosecution
relied most heavily on appellant’s pretrial admissions to possibly injuring
the child by accident. It was the defense, in an attempt to focus suspicion
on Mrs. Dimberio as the actual assailant, who first played the psychological-character
card during pre-trial motions and in the opening argument of the trial.
(R. 26-30, 48-50, 51-53, 96-98, 100). In sum, appellant was entitled to
a fair trial, not a perfect trial, and that is exactly what he received
in this case.

2
With certain carefully-limited exceptions (for the accused, a victim, or
a witness), evidence of a person’s character is not admissible to show
a person acted in conformity with that character. See Mil. R. Evid.
404(a). It is black-letter law that a criminal accused may not introduce
character evidence to show a third party committed the charged offense.
See
1A Wigmore, Evidence § 68 (Tillers rev. 1983); 22 Wright and
Graham, Federal Practice and Procedure: Evidence § 5236 at
385-86 (1978); butseeState v. Anderson, 379 N.W.2d
70, 79 (Minn. 1985). Accordingly, in my view, the defense-proffered evidence
here was perse inadmissible for the purpose of showing Mrs.
Dimberio acted in accordance with this character on the night in question.
Seegenerally S. Childress and M. Davis, 1 Federal Standards
of Review § 4.03 at 4-29 (3d ed. 1999).

3
The
challenged evidence showed Mrs. Dimberio’s character disorders and probable
state of mind, not appellant’s. Accordingly, it was clearly irrelevant
to show that appellant did not act with the requisite criminal intent for
conviction of aggravated assault.

4
The majority asserts that the proffered defense evidence was inadmissible
under Mil. R. Evid. 403 and 702. The military judge, however, ruled that
the proffered defense evidence was not relevant; he did not do a balancing
test or rule that the evidence was relevant but unfairly prejudicial under
Mil. R. Evid. 403. Moreover, the majority’s conclusion under "Daubert"
and "Houser," ___ MJ at (18-19), ignores the scientific-nexus
testimony of Doctor Wacksman and, in my view, conflicts with this Court’s
decision in United States v. St. Jean, 45 MJ 435, 444 (1996).

5Chambers
v. Mississippi, 410 U.S. 284 (1973).

EFFRON, Judge (dissenting):

Four weeks after his birth, Jarod Dimberio
sustained severe trauma, including injuries to his nose, eyes, and brain.
The medical personnel who treated Jarod and examined his records testified
that Jarod's injuries were consistent with "non-accidental trauma" and
that Jarod had been shaken violently. The evidence introduced at trial
indicated that only two people had access to Jarod and the opportunity
to inflict such injuries during the pertinent time period -- appellant
and his wife, Nicole. The evidence called upon the members to decide which
parent was the perpetrator.

The prosecution, during its case-in-chief,
focused significant attention on the state of mind of the perpetrator of
a "shaken baby" crime. The military judge excluded critical, relevant defense
evidence which squarely joined issue with the prosecution's evidence concerning
the state of mind of the perpetrator. Under the circumstances of this case,
that ruling denied appellant his constitutional right to present a defense.
SeeChambers v. Mississippi, 410 U.S. 284, 294 (1973); accordDavis v. Alaska, 415 U.S. 308, 317 (1974), and Washington v.
Texas, 388 U.S. 14, 19 (1967). I respectfully dissent.

I. BACKGROUND

A. Consideration of the Expert's Testimony
at Trial

There was no eyewitness testimony or other
direct evidence as to who caused Jarod's injuries. The Government, relying
on circumstantial evidence, sought to explain to the members why appellant,
as a parent, would have inflicted such violent injuries on his newborn
child.

The Government introduced explicit medical
expert testimony of Dr. Wacksman that "the constellation of symptoms" seen
in Jarod was "typical shaken baby syndrome." Dr. Lonergan, another prosecution
expert witness, similarly testified on direct examination that Jarod "was
a violently shaken baby." On cross-examination, Dr. Wacksman testified
that shaken baby injuries typically result when the response of a care
giver to stressors results in an "acute, abrupt, momentary loss of control."
The experts' testimony was accompanied by prosecution evidence that on
the night of Jarod's injuries, appellant had been tired and under work-related
stress. The prosecution asked the factfinders to infer the following from
this evidence: Jarod suffered injuries that typically are inflicted by
care givers who react acutely and abruptly with momentary loss of control
under stress; appellant was a care giver who was tired and under stress
at the time in question; therefore, appellant cracked under stress and
inflicted Jarod's injuries.1

In response, the defense sought to rebut the
inferences suggested by the Government and to develop alternative inferences.
In support of the inference that he was not the person who had lost his
composure and shaken Jarod, appellant introduced evidence that he was calm
under pressure and responded well to stress, even when tired and upon being
awakened from sleep.

To complement the evidence that he was not
the likely perpetrator, appellant attempted to demonstrate that the only
other possible perpetrator -- Nicole -- was the more likely culprit. Defense
counsel sought to introduce the expert testimony of Dr. Sharbo, a forensic
psychiatrist whom the military judge earlier had appointed to assist the
defense in reviewing Nicole's medical records. According to defense counsel's
proffer, Dr. Sharbo would state his expert opinion that Nicole had certain
mental disorders and traits that historically had led to impulsivity and
instability and that, under these circumstances, she "would not be expec[t]ed
to handle stressful situations well." He would base the testimony on a
personal interview with Nicole, review of her medical and psychological
records and the report of the investigation under Article 32, UCMJ, 10
USC § 832, and consultation (with Nicole's permission) with her previous
treating psychiatrist.

Defense counsel proffered to the military judge
that the evidence would reveal that Nicole had "suffered from major depression
for over 6 years, as noted in the records, and that this major depression
was manifested in many ways, primarily, as far a[s] we are concerned, in
her ability to handle stressful situations and anger problems." This dovetailed,
in the defense view, with: (1) "evidence of a stressful situation for [Nicole]
that evening"; (2) evidence that "she was drinking that night" and that
"when she drinks alcohol she has a much greater inability to control her
anger and stress"; and (3) testimony from the prosecution's expert witnesses
that "in a shaken baby syndrome it normally is related to the ability of
the care giver to handle a stressful situation, either as exhibited by
the baby or by external factors that that care giver is experiencing at
that particular time that might not be related to the baby in particular."

The military judge questioned defense counsel
concerning the "nexus" between evidence that Nicole had difficulty in handling
stress and the implication that the defense sought to make that she would
respond to stress with violence, particularly violence toward her baby.
Defense counsel answered that the proffered evidence "is the type of evidence
that we think is going to link her psyche, if you will, her personality
disorder, her major depressive disorder, her long history of anger and
stress control related problems to that night and her ability, because
of that, to handle any particular stressful situation that occurred." The
military judge did not accept this connection, commenting that, "unless
you can provide the link to her being violent that night, her acting out
that night, then there is not a nexus there and you have a bridge that
you have got to connect up some way." Defense counsel responded:

Your honor, if people had seen Mrs. Dimberio
acting out that night toward her son with all due respect, I don't think
we would be here in this courtroom today. The fact of the matter is abuse
of the child in these situations is normally not seen by a third party.
. . . [I]n these particular types of cases the doctors will tell you that
it all deals with stress and the ability to deal with stress. This is what
causes the care giver to do this to the child, so, if we have a care giver,
the mother, who had complete and equal access to that child that evening,
who has a psychological disorder, an axis disorder that causes them, such
as major depression, which we understand does not abate over time, that
that is relevant to determining whether or not we are talking about the
identity of the perpetrator, it is more likely that that care giver is
the one that could not handle the stressful situation that caused the injuries
to Jarod.Defense counsel reinforced that view in later
argument to the military judge:[I]f he is going to come in here and tell
the court that she has a major depressive disorder and that she has a personality
disorder that exhibits itself in an inability or a decreasability to handle
stressful situations then I think that that opinion is admissible to the
court members, not, your honor, anything specifically about past instances
or past stressful situations or past alcohol use except as it applies to
the doctor forming his opinion that in the opinion format without going
into specifics he then provides to the jury. We do know that at least she
told one doctor that night that she was stressed and we do know that she
was drinking alcohol. I think that is the link there in regards to her
personality disorders or major depression, if any, that she certainly has
had for 6 years as far as major depression. I understand that it has not
disappeared at will and the issue of identity and motive in this case.Shortly after this argument, the military judge
deferred ruling on the matter until later in the trial.

The Government subsequently "move[d] under
its existing motion in limine to exclude this testimony [of Dr.
Sharbo] on the grounds that it doesn't meet the relevance criteria under
[Mil. R. Evid.] 401 or 403." The prosecution argued that the proposed defense
testimony was not relevant because there was no evidence that Nicole had
faced a stressful situation that evening or that she would respond to stress
with violence toward children.

The military judge ruled that the testimony
of Dr. Sharbo was inadmissible. Although he did not cite a specific basis
for his opinion, he indicated that the evidence was not relevant because
the defense did not demonstrate that Nicole had reacted violently in response
to stress in the past. See Mil. R. Evid. 401 and 402.

B. Consideration of the Expert's Testimony
on Appeal

In the Court of Criminal Appeals, appellant
renewed his argument that Dr. Sharbo's testimony was relevant and admissible.
52 MJ 550 (1999). The court concluded that "while the military judge's
reliance on the fact that there was no evidence that Mrs. Dimberio had
ever assaulted an infant may have been overly narrow in scope, this does
not detract from the essential correctness of his ruling." Id. at
557.

According to the Court of Criminal Appeals,
"[t]he critical deficiency of appellant's proffer was its reliance on a
predisposition or profile, which in turn depended upon a trait of Mrs.
Dimberio's character. This is specifically prohibited by Mil. R. Evid.
404(a). . . ." Id. at 558. The court stated that it did "not read
the rules of evidence or case law as permitting a trial to be decided by
traits associated with a personality disorder," and it concluded that "the
military judge was well within his discretion in reaching [the] conclusion"
that "Mrs. Dimberio's personality disorder was not relevant and, therefore,
not admissible." Id. at 559.

In the present appeal, the granted issue requires
our Court to determine whether the expert testimony was relevant and admissible.
The majority would affirm the exclusion of Dr. Sharbo's testimony on several
bases. First, the majority asserts that appellant "did not offer an appropriate
foundation for the introduction of . . . opinion-typeevidence"
as to a character trait of Nicole. According to the majority, "The expert
in this case had not known Mrs. Dimberio long enough to have formed a traditional
opinion as to her character. . . ." and "the defense [did not] offer specific
instances of conduct by Mrs. Dimberio." ___ MJ at (17). Second, the majority
apparently concludes that the defense proffer did not establish the relevance
of the evidence, noting that "what is missing here is an adequate proffer
that this evidence of Mrs. Dimberio's mental health problems had a nexus
or link to behavioral traits of acting out and violence." Id. at
(18). Third, the majority holds that even if relevant, "the evidence would
still be inadmissible under [Mil. R. Evid.] 403's balancing test" because
the proffered evidence was "both speculative and potentially confusing
to the members," absent a showing that Nicole's problems were tied to violence.
Id.
at (20). Finally, the majority indicates that any error was harmless because
"appellant did present his defense to the court members through other means,"
including evidence that Nicole was under stress at the time in question
and that she apparently had been drinking alcohol.
Id. at (21).

II. ADMISSIBILITY OF THE EXPERT'S TESTIMONY

A. Foundation for Expert Opinion

Mil. R. Evid. 405(a) provides that, whenever
"evidence of character or a trait of character of a person is admissible,
proof may be made . . . by testimony in the form of an opinion."2
This rule includes testimony of the opinion of a psychiatrist that is based
on a professionally satisfactory foundation. See Advisory Committee's
Note to Fed. R. Evid. 405, 56 FRD 222 (acceptable form of opinion testimony
includes "the opinion of the psychiatrist based upon examination and testing");
United
States v. St. Jean, 45 MJ 435, 442-44 (1996) (in murder trial where
victim's state of mind was in issue, testimony of a psychiatrist, who had
examined copious records and documents relating to the victim and the crime,
was admissible to offer his opinion that he detected no indication that
the victim was either depressed or "highly impulsive," which he already
had testified were characteristics of persons with a high risk of committing
suicide); State v. Christensen, 628 P.2d 580, 582 (Ariz. 1981) (in
murder trial where the defendant's premeditation was in issue, testimony
of a psychiatrist, who had interviewed the defendant and had reviewed tests
administered to him, was admissible to offer opinion that the defendant
"had difficulty dealing with stress and in stressful situations his actions
were more reflexive than reflective"). See also 3 Jones on Evidence:
Civil and Criminal §16:24 at 152-54 (7th ed. 1998);
Stephen A. Saltzburg, Michael M. Martin, & Daniel J. Capra, 1 Federal
Rules of Evidence Manual (hereafter Saltzburg) 402-03 (7th
ed. 1998), discussing United States v. Staggs, 553 F.2d 1073 (7th
Cir. 1977) ("In dictum, the Court seemed to approve the use of an expert
opinion as to the character of a criminal defendant, which Rules 404(a)
and 405 do not prohibit but which generally was not permissible at common
law."). See also Saltzburg, supra at 402, discussing United
States v. Roberts, 887 F.2d 534 (5th Cir. 1989) ("The Court
held it was error, but harmless, to exclude testimony of a psychologist
that the personality of a defendant charged with cocaine offenses was consistent
with his claimed activity as a self-appointed vigilante.").

In the present case, Dr. Sharbo personally
interviewed Nicole, discussed the matter with her previous treating psychiatrist,
and reviewed Nicole's medical and psychological records as well as the
Article 32 investigation report. These actions established a legally sufficient
foundation for Dr. Sharbo to offer the expert psychiatric opinion testimony
proffered by the defense. See Mil. R. Evid. 703, Bases of Opinion
Testimony by Experts; Stephen A. Saltzburg, Lee D. Schinasi, and David
A. Schlueter, Military Rules of Evidence Manual 865 (4th
ed. 1997) ("Under Rule 703, an expert may base her opinion upon facts or
data that she has perceived, learned from study or experiment, or been
told about, either by watching the proceeding in court, or from other sources
outside court."); id. at 841 ("[P]ursuant to Rule 703, counsel may
rely on expert witnesses to provide opinion testimony which is not based
on first hand knowledge or observation."); State v. Christensen,
supra
(in murder trial, psychiatric evidence as to defendant's proclivity toward
reflexive actions under stress was admissible on question whether appellant
killed his wife with premeditation or impulsively). Cf.
St. Jean,
supra at 444 ("[V]icarious fact-gathering is expressly permissible
and normal in the medical, psychiatric, and psychological fields.").

B. Relevance of the Expert's Testimony

The prosecution's theory of the case and the
evidence introduced by the prosecution placed the psychological condition
of the perpetrator squarely at the center of this trial. Only

one of two people could have shaken Jarod and
caused these injuries -- appellant or Nicole. There was no evidence that
either appellant or Nicole previously had responded to stress with violence
in general or violence against a child in particular. On this occasion,
however, one of them did so. The heart of appellant's defense sought to
focus the members on the question of whether it was appellant or Nicole
who had responded to stress with violence against their child.

In this context, the prosecution emphasized
factors relevant to appellant's mental condition -- that he had been tired
and under stress on the night in question. The prosecution -- consistent
with their expert's opinion -- did not attempt to show that he had reacted
to stress with violence in the past or that the stress preceding the incident
was necessarily related to the baby. The proffered expert testimony as
to the impact of Nicole's psychological condition on her ability to cope
with stress was at least as compelling as the prosecution's evidence concerning
appellant.

"[A]nything that can help rationally decide
disputed issues and be helpful to the finder of fact is relevant . . .
. If evidence is of any value at all, it qualifies under the Rule." Military
Rules of Evidence Manual,supra at 474. Where the prosecution's
own evidence indicated that the perpetrator probably was someone who cracked
under stress without necessarily having done so in the past -- and without
any showing that the stress was caused by the baby -- the military judge
erred in concluding that it was "irrelevant" that Nicole's mental condition
was such that she could be expected to have difficulty with stress. Under
these circumstances, the excluded testimony of Dr. Sharbo would have had
some "tendency to make the existence of any fact that is of consequence
to the determination of the action more probable . . . than it would be
without the evidence." Mil. R. Evid. 401.

C. Mil. R. Evid. 403

Mil. R. Evid. 403 precludes admission of relevant
evidence under six circumstances. Even though "relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the members,
or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence."

The military judge commented at one point that
without some showing that Nicole's mental condition would lead her to respond
to stress with violence, the evidence in question "should be excluded under
any type of [Mil. R. Evid] 403 balancing test." The military judge, however,
did not indicate what was so objectionable about the evidence that it substantially
outweighed the probative value. In the absence of any analysis by the military
judge, the majority attempts to perform the balancing test under Mil. R.
Evid. 403, asserting that the proffered evidence would have been "both
speculative and potentially confusing to the members." ___ MJ at (20).
The majority offers no analysis, however, as to why this evidence would
have been so flawed.

Moreover, whether it would have been "potentially
confusing" is not the test under Mil. R. Evid. 403; rather, the test is
whether such difficulties as danger of unfair prejudice or confusion of
the issues "substantially outweigh[]" the "probative value" of the evidence.
Mil. R. Evid. 403 "is constructed to favor the admission of evidence, as
a result exclusion of otherwise relevant testimony should be rarely invoked."
Military
Rules of Evidence Manual, supra at 490; seeUnited
States v. Roberts, 88 F.3d 872 (10th Cir. 1996);
United
States v. Mende, 43 F.3d 1298 (9th Cir. 1995);
United
States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990).
"The use of the word 'substantially' in the Rule suggests that in close
cases the drafters intended that evidence should be admitted rather than
excluded." Military Rules of Evidence Manual, supra at 491.
SeeUnited States v. Mende, supra; United States
v. Krenzelok, 874 F.2d 480 (7th Cir. 1989).

Furthermore, the "prejudice" that the rule
seeks to avoid is the danger of "unfair prejudice" -- that is, the danger
that the evidence will be used "for something other than its logical, probative
force." Military Rules of Evidence Manual, supra at 492.3
The nature of the proffered evidence -- given the context of this trial
and the prosecution's evidence -- would have sharpened the issues and would
have provided a complete picture of the defense theory for the members'
consideration without being unfairly prejudicial to the Government, confusing
the issues, or misleading the members. Under these circumstances, Mil.
R. Evid. 403 does not provide a basis for exclusion of the expert's testimony.

D. Mil. R. Evid. 404

Mil. R. Evid. 404(a) generally excludes "[e]vidence
of a person's character or a trait of a person's character . . . for the
purpose of proving that the person acted in conformity therewith on a particular
occasion . . . ." The rule is based on the premise that character evidence
offers "little probative value" in such circumstances, while creating a
significant risk of diverting the members' deliberations through the interjection
of irrelevant issues. SeeMilitary Rules of Evidence Manual,
supra
at 524.

Subsections (1) - (3) of Mil. R. Evid. 404(a)
recognize three exceptions to the general rule of inadmissibility: (1)
evidence of a pertinent character trait of an accused offered by the accused,
or by the prosecution to rebut it; (2) evidence of a pertinent character
trait of the victim offered by the accused, or by the prosecution to rebut
it; and (3) evidence of the character of a witness offered to impeach the
witness under Mil. R. Evid. 607 - 609.

One explanation for these historical exceptions
is that when an accused initiates use of acharacter trait "to exonerate
himself, the problem of prejudice is altogether different. Now, knowledge
of the accused's character may prejudice the jury in his favor,
but the magnitude of the prejudice or its social cost is thought to be
less." 1 McCormick on Evidence § 191 at 673 (5th
ed. 1999) (emphasis in original). Cf. 1 Federal Rules of Evidence
Manual, supra at 374 (the rationale for the exception permitting
an accused to introduce evidence of his own character "is that the defendant
deserves the benefit of all reasonable doubts and that good character may
produce a reasonable doubt."). Similarly, in commenting on the exception
relating to the defense introduction of evidence of the victim's character,
the McCormick text states:

That the character of the victim is
being proved renders inapposite the usual concern over the untoward impact
of evidence of the defendant's poor character on the jury's assessment
of the case against the defendant. There is, however, a risk of a different
form of prejudice. Learning of the victim's bad character could lead the
jury to think that the victim merely "got what he deserved" and to acquit
for that reason. Nevertheless, at least in murder and perhaps in battery
cases as well, when the identity of the first aggressor is really in doubt,
the probative value of the evidence ordinarily justifies taking this risk.McCormick, supra at 681 (emphasis
in original).

Mil. R. Evid. 404(a) does not express an exception
permitting the defense to introduce evidence of a relevant character trait
of a third-party alternate perpetrator. Nonetheless, the considerations
applicable to both the general rule of exclusion and the specific exceptions
would seem to apply with equal force to an exception in this area. Tiller's
1983 revised edition of IA Wigmore, Evidence § 68 at 1444 contains
the following observation:

[I]f one takes the view that character evidence
is relevant and that the main reason for its usual exclusion is the danger
of prejudice to the parties, it is not insensible to take the view that
evidence of the character of third persons should be admissible when there
is no substantial danger that the trier of fact will draw inferences about
the character of the parties as a result of his views of the character
of the nonparties.(Citations omitted.) The authors quote the following
passage from Professor Wigmore's third edition of the Treatise that pointedly
reflects this view:Where the character offered is that of a
third person, not a party to the cause, the reasons of policy for exclusion
seem to disappear or become inconsiderable; hence, if there is any relevancy
in the fact of character, i.e., if some act is involved upon the probability
of which a moral trait can throw light, the character may well be received.(Citations omitted.)

In this case, the disputed evidence of Dr.
Sharbo's testimony was critically important to the defense and went directly
to the heart of the case, as shaped by the prosecution, and the question
before the members: Which of two parents had violently injured Jarod? In
that context, the relevance of the evidence was great and the risk of unfair
prejudice and confusion was minimal, consistent with the rationale underlying
Mil. R. Evid. 404. Under those circumstances, the rule cannot impede appellant's
constitutional right to a fair trial and a full presentation of his defense
theory that Nicole committed the crime. SeeChambers v. Mississippi,
410 U.S. 284 (1973); Cikora v. Dugger, 840 F.2d 893 (11th
Cir. 1988). Cf. DePetris v. Kuykendall, 239 F.3d 1057, 1062
(9th Cir. 2001) (trial court's erroneous exclusion of crucial
defense evidence as irrelevant "went to the heart of the defense" and,
so, denied defendant's "Fifth Amendment due process right to a fair trial"
and her "Sixth Amendment right to present a defense," citing Chambers
v. Mississippi, supra).

III. PREJUDICE

The majority takes comfort in the fact that
"appellant did present his defense to the court members through other means,"
___ MJ at (21), noting that the members heard evidence that Nicole was
under stress and "'had the smell of alcohol about her.'" The majority concludes:
"The only area which appellant's defense counsel was not allowed to explore
was Nicole Dimberio's mental health diagnosis and its link to the baby."
Id.
at 21-22.

Without evidence of Nicole's mental health
diagnosis and the expert's testimony concerning the likelihood that she
would have difficulty handling stress, particularly when under the influence
of alcohol, the defense was deprived of the testimony necessary to explain
the significance of the evidence that she was under stress and had been
drinking. It is not unusual for persons to be under stress, to drink alcohol,
or both. What was missing in this case was the opportunity for the defense
to present evidence that gave meaning to these factors -- that this particular
person had a mental condition that could cause her to respond in a certain
way when under stress and particularly when drinking alcohol. Under these
circumstances, the exclusion of the proffered expert testimony of Dr. Sharbo
materially prejudiced the substantial rights of appellant. See Art.
59(a), UCMJ, 10 USC § 859(a).

FOOTNOTES:

1 Trial counsel's
rebuttal argument during closing relied on Dr. Wacksman's testimony, contending
that this "is most likely a shaken baby rather than an impact trauma .
. . ." In arguing that appellant had the mental state to inflict such injuries,
trial counsel argued that appellant had been "tired" that night and had
"become upset" with Jarod. He contended that the evidence showed a "deliberate
shaking of the baby out of frustration, out of anger, out of being upset."

3
"[P]ractice often demonstrates that counsel's arguments for excluding testimony
largely consist of undefined, conclusory references to the evidence's prejudicial
effects, rather than pointed demonstrations of the evidence's unfairly
prejudicial impact on the court members' ability to properly evaluate the
other admissible evidence and reach an appropriate, non-emotional, result
thereon. Unless counsel can articulate why the evidence will be unfairlyused,
it can be admitted." Id. at 492-93 (last emphasis added).